by John Wright
Bigoted, ridiculous, and unconstitutional.
Those were some of the words used by two Houston lawmakers to describe the assault on LGBT equality that is already under way in the 84th Texas Legislature.
With the bill-filing deadline still six weeks out, three anti-LGBT measures have already been introduced. Details of a fourth bill have been widely reported in the media, and Equality Texas warned that even more attacks are coming.
“It’s mostly religion, or bigotry—using religion to justify bigotry,” said Rep. Garnet Coleman (D-Houston). “We’re going to fight that legislation because it’s bigoted. I don’t know if we can or can’t, [but] we’re going to do everything we can to stop those bad bills.”
Coleman agreed with LGBT advocates who say the legislative attacks are a direct response to a wave of court victories across the nation that has brought marriage equality to 36 states.
While the U.S. Supreme Court now appears poised to issue a nationwide ruling in favor of marriage equality in June, the Fifth U.S. Circuit Court of Appeals could bring gay nuptials to Texas before then.
A few days prior to Fifth-Circuit oral arguments in the lawsuits challenging Texas’ marriage ban, Rep. Cecil Bell (R-Magnolia), introduced a bill that would suspend the salaries of state employees who issue or recognize same-sex marriage licenses.
In one media interview about the bill, Bell said same-sex marriage would lead to “the moral degradation of the fabric that holds Texas together.” In addition to punishing state employees who adhere to rulings from federal judges, Bell’s HB 623 seeks to nullify any court challenge to the law, declaring Texas sovereign on the issue of same-sex marriage.
“We have to remember that this is a political tactic,” Coleman said. “The actual [marriage] ban itself was a political tactic by the Republican Party, and I would imagine Cecil Bell and others are doing that so they can continue the ‘God, guns, and gays’ mantra.”
Travis County Clerk Dana DeBeauvoir, a Democrat, made headlines when she pledged to defy Bell’s bill even if it means losing her salary. And legal experts panned Bell’s measure as blatantly unconstitutional, saying if the marriage ban is struck down, any such law would also be nullified.
Rep. Jessica Farrar (D-Houston), agreed. “What they’re trying to do is build a dam around Texas, and I don’t think the Constitution will allow it,” said Farrar, who is an attorney. “They can pass [antigay legislation] all day long and the governor can sign it, but when the Supreme Court rules, it’s all going to go away.”
Perhaps a more realistic threat is a proposal to prohibit cities in Texas from passing LGBT-inclusive nondiscrimination ordinances (NDOs). Such a bill would repeal LGBT protections that have already passed in cities, including Houston, that are home to 7.5 million Texans.
Four Collin County Republicans reportedly plan to introduce the bill in response to passage of an equal-rights ordinance in Plano last December. Texas Pastor Council Executive Director Dave Welch, whose group is leading efforts to repeal LGBT protections in both Plano and Houston, said the bill would prohibit political subdivisions from adding protected classes to NDOs that aren’t included in state or federal law.
Critics say the bill would be another example of anti-LGBT Republicans—who have long advocated standing up to the federal government on issues including same-sex marriage—hypocritically attempting to strip autonomy from cities.
“I think local control should prevail, and that’s something that local city councils and others should decide for the locality—not the state of Texas,” Coleman said. “We know these things are difficult, but I think we can stop that, because it is a local-control issue.”
Even if the ban on nondiscrimination ordinances were to pass, it would almost certainly be challenged in court. In Tennessee, the only other state where such a bill has passed, the National Center for Lesbian Rights filed a lawsuit alleging that it runs afoul of the U.S. Supreme Court’s landmark 1996 Romer v. Evans decision. That ruling struck down a Colorado ban on sexual-orientation protections, saying it was unconstitutional for legislators to single out a specific group.
The proposed ban on local NDOs, which had not been filed at press time, would be one of at least three legislative proposals targeting local LGBT protections. The other two are constitutional amendments—known as “license to discriminate” measures—that would carve out broad religious exemptions to NDOs.
Farrar characterized the proposed constitutional amendments as an attempt to rewrite the First Amendment of the U.S. Constitution.
“It’s interesting to me to see that these are the priorities at a time when we’ve got kids to educate and roads to build,” Farrar said. “Here we are, dallying with these ridiculous issues, [with] people who call themselves constitutionalists trying to controvert the U.S Constitution.
“They’d like to go back to pre-Brown v. Board of Education,” she said, referring to the 1954 Supreme Court case in which justices rejected segregated schools. “That’s what they think the Constitution says, but it’s been interpreted to widen people’s rights, and I think it will continue to do that.”
Ironically, the expansion of LGBT rights under the Constitution has taken place largely as a result of the right-wing attempts to strip them away, Farrar said.
It was exactly 10 years ago that Texas lawmakers approved the marriage amendment—which both Coleman and Farrar believe has had the unintended consequence of fueling advances for LGBT equality.
“I’ve always said that I think marriage equality is going to happen in Texas and other states not because [anyone actually proposed it], but because the other side decided to stop it,” Farrar said. “I think what’s important is even if you don’t win inside [the capitol building], you take the fight to the outside and educate the public about just what your public officials are doing.”
Coleman, who has repeatedly introduced legislation to overturn the marriage amendment, said the same principle holds true for pro-equality bills. As Republicans target local NDOs, Rep. Eric Johnson (D-Dallas), introduced a bill in January to prohibit anti-LGBT employment discrimination statewide.
“We’ll continue to do these things every session, but as long as Republicans are in control of the Legislature, these bills will not pass,” Coleman said. “But that doesn’t mean we don’t file them and organize around them [as a way of changing] public opinion, because public opinion is what changes how elected officials vote.”
Coleman said it’s important for LGBT people to understand that the legislative attacks against the community are merely a sign that supporters of equality have the upper hand.
“This is actually [their] response to [our] winning strategy,” Coleman said. “I believe this is [the way that Republicans] try to undermine something that’s on the way to becoming the law of the land. We’re winning and they’re losing. It’s a response to a winning strategy in the courts, so they’re the ones who are behind the eight-ball.
“Because of their advocacy and their tenacity,” Coleman said of LGBT Texans, “and their support for people in the Legislature, and not having fear, we’re moving forward.”